Bonnie
Ohlinger claims that her employer Marsh USA violated the
Federal Labor Standards Act (FLSA) and various Nevada state
labor laws when requiring her and similarly situated
employees to work more than 40 hours a week. Marsh moves to
dismiss Ohlinger's state-law claims, arguing that Nevada
does not recognize a private right of action for violating
NRS Chapter 608, rather the power to enforce those laws is
vested entirely in Nevada's Labor
Commissioner.[1] For the reasons I explained in Cardoza
v. Bloomin' Brands, Inc., [2] I agree and grant the motion
to dismiss.

Discussion

In
addition to an FLSA claim, Ohlinger pleads claims under NRS
608.005, 608.016, and 608.018 (overtime pay), NRS 608.115
(failure to maintain records), NRS 608.040 (failure to pay
discharged employee's earned but unpaid wages), and NRS
608.140 (attorney's fees in wage action).[3] Marsh moves to
dismiss these claims, which are collectively contained in
counts two and three of the complaint, arguing that NRS
Chapter 608 does not provide a private right of action to
maintain a civil suit for violation of these state
statutes.[4] Ohlinger mainly rests her
private-right-of-action argument on two points[5] of Nevada
authority: (1) NRS 608.140, which allows the court to award
certain categories of employees attorney's fees in a
“suit for wages earned and due according to the terms
of his or her employment, ” and (2) a footnote in the
Nevada Supreme Court's opinion in Baldonado v. Wynn
Las Vegas, LLC, which recognizes that “a private
cause of action to recover unpaid wages is entirely
consistent with the express authority under NRS 608.140 to
bring private actions for wages unpaid and
due.”[6]

In
Cardoza v. Bloomin' Brands, Inc., I considered
and rejected the same arguments that Ohlinger advances here.
Like Ohlinger, Cardoza pled wage claims under both the FLSA
and NRS Chapter 608. I dismissed the state-law claims after
concluding that Nevada's statutory scheme does not afford
the right to bring a civil suit for violations of these labor
laws.[7] Like Ohlinger, Cardoza attempted to
bootstrap a private right to enforce other provisions of
Chapter 608 from NRS 608.140, which the Nevada Supreme Court
acknowledged in Baldonado v. Wynn[8] “expressly
recognize[s] a civil enforcement action to recoup unpaid
wages.” But after I considered the statute's text
and legislative history, [9] I concluded that NRS 608.140 does not
create a vehicle for privately enforcing the legal rights
conferred by the other provisions of Chapter 608; it merely
establishes a fee-shifting mechanism in an employee's
“suit for wages earned and due according to the terms
of his or her employment.”[10] Ohlinger has not
persuaded me otherwise.

The
Baldonado footnote does not undermine this
conclusion. It merely acknowledges a secondary effect of NRS
608.140: this attorney's fee provision merely
“recognize[s] a civil enforcement action to recoup
unpaid wages.”[11] It was logical for the
Baldonado court to frame the issue this way because
the right to sue for unpaid wages existed in Nevada before
NRS 608.140 was enacted and exists independent of Chapter
608.[12] So, unlike plaintiff, I do not read
Baldonado to hold “that employees such as Ms.
Ohlinger have standing to recover unpaid wages, including
overtime, under NRS 608.005 et seq.”[13] Instead, I
continue to hold that employees may recover unpaid wages
under Nevada law if those sums were earned and due according
to the terms of their employment, but they do not enjoy a
private right of action for violations of NRS Chapter
608.[14]Those violations are for the Labor
Commissioner to sort out.[15]. . .

Conclusion

Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss
[Doc. 10] is GRANTED. Plaintiffs second and third claims are
dismissed with prejudice.

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